Library Video Company understands the challenges faced by educators as they navigate
the complex rules of copyright while trying to take advantage of new innovative teaching
techniques. Even though technology is rapidly changing the way students learn and educators
teach, the basic principles governing copyright remain relatively unchanged. The following
is a brief survey of the current state of copyright law related to the classroom.
The General Rule.
Copyright protection exists from the time the work is created in a fixed, tangible form
of expression. U.S. copyright law grants the owner of a work the exclusive right to:
(i) make copies; (ii) prepare derivative works; (iii) distribute copies of the work;
(iv) publicly perform the work and/or transmit the work; and (v) display the work. As
a general rule, unless a license is obtained, it is unlawful for anyone to violate any
of the exclusive rights of a copyright owner. However, the law recognizes the value and
need of educators to use copyrighted material in the classroom for educational purposes
and, therefore, enumerates certain limited exemptions and exceptions to the exclusive
rights of a copyright owner. If your use of an audiovisual work does not fall into one
of the exemptions or exceptions described below, such use may infringe the copyright
owner’s exclusive rights and, therefore, require a license that grants permission
for such use.
Educational Exemptions.
Section 110 of the United States Copyright Act of 1976 (17 U.S.C. 110) establishes a
widely relied-upon exemption to the exclusive rights of a copyright owner for the use
of copyright-protected audiovisual materials in educational settings. Section 110(1),
commonly referred to as the “Classroom Exemption,” pertains to traditional
face-to-face classroom settings, while Section 110(2) covers distance learning situations.
The educational exemptions under Section 110, as described below, only apply to
audiovisual materials used to support curriculum and do not include, under any
circumstances, uses for recreational, entertainment, or “rainy day” purposes.
Also, only non-profit educational institutions are qualified to take advantage of the
exemptions.
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The Classroom Exemption (Face-to-Face Teaching)
The Classroom Exemption, under Section 110(1) of the Copyright Act, applies to
traditional classroom settings, where the teacher and students are in the same
location during a live class session. Educators and students are permitted to
perform and display copyrighted audiovisual works in a classroom (or a similar
place devoted to instruction – such as a library), as long as such use is in
the course of face-to-face teaching activities at a non-profit educational
institution. The instructor must be present during the performance and no
admission or other fees can be charged to students for viewing the program.
If all of the conditions of the Classroom Exemption are met, it is permissible
to show a legally obtained program in a classroom or school library without
obtaining permission from the copyright owner, even if labels like “For
Home Use Only” appear on the packaging. The Classroom Exemption supersedes
these written warnings of the copyright holder. Please note, however, that the
Classroom Exemption does not authorize teachers or students to make or distribute
copies of audiovisual works. The purpose of the exemption is only to facilitate
the use of audiovisual materials for live, face-to-face class sessions and does
not grant any rights to copy, edit, broadcast, transmit, or otherwise distribute
copyright-protected works.
*Note: A widely accepted interpretation of Section 110(1) allows for videotapes
and DVDs to be publicly performed via a closed circuit system for multi-classroom
utilization, as long as the broadcast does not leave the school grounds. This
interpretation is supported by the House of Representatives Report No. 94-1476
which accompanied the passage of the Copyright Act. The Report states, “as long
as the instructor and pupils are in the same building or general area, the
exemption would extend to the use of devices for amplifying or reproducing sound
and for projecting visual images.” This law supersedes all written warnings
of the copyright owner, unless there’s a written license, in which case the terms
of the license would govern.
Distance Learning Exemption
Section 110(2) of the Copyright Act governs distance learning situations where the
teacher and students are in different locations, requiring the transmission to
extend beyond a single building. As communication technologies continue to improve
and become more dynamic, many schools are developing distance learning programs to
better serve the needs of their students. Until recently, the distance learning
exemption was much more restrictive than the Classroom Exemption under Section 110(1)
and, therefore, had limited value for teachers. However, passage of the Technology,
Education, and Copyright Harmonization (TEACH) Act in 2002 updated Section 110(2) to
better serve educators and students in the digital age, while continuing to protect
the interests of copyright owners.
Section 110(2), as amended by the TEACH Act, extends the Classroom Exemption to
accommodate the performance of copyrighted materials for distance education by accredited,
non-profit educational institutions that meet the Act’s qualifying requirements. The TEACH
Act permits the use of distance learning technologies to show “reasonable and limited
portions” of an audiovisual work, as long as:
- the transmission is directed by the instructor;
- the performance is directly related to the curriculum;
- the transmission is limited, to the extent technologically feasible,
to the students officially enrolled in the class;
- the use is part of a live or asynchronous class session; and
- the transmission includes a notice to students that materials used in
connection with the course may be subject to copyright protection.
Limited portions of analog versions of audiovisual works may be converted and saved
to a digital format for use in digital distance education only if all of the performance
requirements of Section 110(2) are met and only if no digital versions of such works are
reasonably available from the copyright owner. For example, analog versions (such as VHS
copies) of programs that are otherwise available from Library Video Company in digital
format for use on a SAFARI Video Networks system cannot be converted to digital format
without the copyright holder’s written permission. Furthermore, copyrighted works that
are produced or marketed primarily for mediated instructional activities for transmission
via digital networks (such as digital programming available from Library Video Company)
are completely excluded from the distance learning exemption under Section 110(2) of the
Copyright Act. The use of such works for distance learning without the copyright owner’s
permission may subject the user to liability for copyright infringement.
It is critical to note that Section 110(2) does NOT permit educators or students,
under any circumstances, to circumvent or interfere with any technological protections
employed by copyright owners to prevent copies or distribution of an audiovisual work.
Also, Section 110(2), like Section 110(1), only pertains to in-class performances and
displays of audiovisual works and does not apply to textbooks or other supplemental
reading materials. Any such use of text-based materials in connection with distance
learning technologies is subject to the traditional fair use analysis under Section
107 of the Copyright Act (see below).
Even though the TEACH Act provides greater flexibility to educators to use some
audiovisual materials with distance learning technologies, the TEACH Act’s numerous
requirements, limitations, conditions and exclusions can make compliance difficult and
cumbersome. If you are unsure whether your use of an audiovisual work qualifies under
Section 110(2), the University of Texas System has published a useful checklist to help
educators apply the TEACH Act provisions. The checklist is available online at
http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm.
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The Fair Use Doctrine.
While the above Educational Exemptions may permit certain limited performances of
copyrighted audiovisual works in the classroom and for distance learning, the
exemptions generally do not offer flexibility with respect to the copyright owner’s
exclusive right to make copies, create derivative works, or distribute such works.
The only instance where any such uses are permissible without a license is where
the use qualifies as a “fair use” under Section 107 of the Copyright Act.
The fair use provisions of Section 107 allow for certain limited uses of copyrighted works
that do not interfere with the copyright holder’s exclusive rights. Fair use
is a defense to copyright infringement and primarily intended to allow the use of copyrighted works for commentary, parody,
news reporting, research and education. However, not all uses in an academic setting
or for educational purposes are automatically considered fair use. Fair use is
determined on a case-by-case basis, by weighing the following four factors:
- the purpose and character of the use, including whether such use is
of a commercial nature or is for non-profit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of
the copyrighted work.
The fair use factors have been the subject of much debate in the courts
and in the academic community. The factors are designed to provide flexibility,
but they also offer very little certainty with respect to what is or is not a
fair use. For example, even if copying or use of a video clip is done for
educational purposes, if it is too long or is found to unfairly interfere with
the copyright holder’s ability to sell his or her product in the open market,
it may be infringing. Unfortunately, there is no bright line test for determining
what constitutes a fair use. Fair use determinations are generally left to the
user’s discretion and are subject to potential challenge by the copyright
owner.
In an attempt to bring more certainty to the application of fair use, an
initiative called the Conference on Fair Use (CONFU) brought together educational
organizations, copyright experts and content publishers to develop a set of
informal guidelines, called the “Fair Use Guidelines for Educational
Multimedia,” to help educators apply the fair use factors in educational
settings. Even though a final consensus could not be reached and the CONFU
Guidelines do not have the effect of law and are not binding in any manner,
they do offer good boundaries and guidance for which activities may qualify
as fair use. A copy of the CONFU Guidelines can be found on the University of
Texas System web site at http://www.utsystem.edu/ogc/intellectualproperty/ccmcguid.htm.
It is important to note, however, that the fair use provisions of Section 107
and the CONFU Guidelines do not preempt or supersede licenses and contractual
obligations. Any contractual obligations agreed to by users in a license take
precedence over whatever rights they may have under Section 107.
The Digital Revolution.
Digital media and communication networks are rapidly changing teaching methodologies
and school infrastructure. Digital delivery networks have enabled new interactive
ways to share information both in the classroom and beyond the physical school
building. However, except for the new TEACH Act provisions of Section 110(2) of
the Copyright Act, the fundamental rules of copyright are essentially unchanged
in digital environments. Unless a license is obtained or the performance is otherwise
permissible under Section 107 of the Copyright Act, all performances of audiovisual
works for educational purposes must comply with the requirements in Section 110 to
avoid liability for infringing the exclusive rights of the copyright holder. Any
activity that produces a copy of the work, whether by downloading, saving a copy
to a hard drive, or by any other means, must be authorized by license, unless the
activity qualifies as a fair use under Section 107. Furthermore, as discussed
above, converting and saving analog works (such as VHS copies) in digital format
requires permission from the copyright holder, unless the conversion is for distance
learning purposes under Section 110(2) and the work is not available for purchase in
digital format from the copyright holder. Except in the limited and narrow circumstances
described in Section 110(2), any conversion of an analog program to a digital format
that results in the making of a copy of the program is likely a violation of the
copyright holder’s exclusive rights.
Local and wide-area digital delivery networks have also made it much easier for
schools to expand the audiovisual resources available in the classroom. Digital
delivery networks enable schools or media centers to broadcast, stream, download,
or otherwise transmit audiovisual materials from a centralized location to multiple
school buildings or classrooms. However, the ease by which audiovisual materials
can be transmitted to or from other locations does not relieve the user from its
copyright compliance obligations. Unless the transmission complies with the performance
requirements for the distance learning exemption under Section 110(2) or the activity
is otherwise permitted as a fair use under Section 107, a license is likely required
for any transmission of copyrighted audiovisual works beyond the building of origin,
even if the teacher initiates the transmission and/or is in the same room as the
students.
The best way to fully enjoy the benefits and flexibility of the digital age is
to secure a license for all of your digital content needs. A license can eliminate
much of the uncertainty of copyright compliance and free educators and students to
take full advantage of the digital environment. A digital content license is the
safest and most effective way to meet the educational challenges of the digital age.
Legal Notice.
This copyright resource was created to provide you with general information and
may not address your specific question or situation, which may have unique legal
implications. In addition, copyright laws are subject to change, and interpretations
may vary across jurisdictions. Consequently, this resource is distributed with the
understanding that neither the author nor publisher is rendering legal advice or
professional services, nor does it form an attorney-client relationship. Please be
sure to consult with an attorney licensed to practice law in your jurisdiction
before taking any action on your specific question or situation.
If you have any questions regarding your rights for Schlessinger Media-branded
programs, please feel free to call our Customer Service Department at (800) 843-3620.
Thank you.
Sincerely,
Library Video Company
